Recording Industry of America v. Verizon Internet

• Decision Date: 19 December 2003
• Docket Number: Consolidated with 03-7053.,No. 03-7015.,03-7015.
• Citation: 351 F.3d 1229
• Parties: RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC., Appellee, v. VERIZON INTERNET SERVICES, INC., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

351 F.3d 1229

RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC., Appellee, v. VERIZON INTERNET SERVICES, INC., Appellant.

No. 03-7015.

Consolidated with 03-7053.

United States Court of Appeals, District of Columbia Circuit.

Argued September 16, 2003.

Decided December 19, 2003.

Appeals from the United States District Court for the District of Columbia (No. 02ms00323) (No. 03ms00040).

Andrew G. McBride argued the cause for appellant. With him on the briefs were John Thorne, Bruce G. Joseph, and Dineen P. Wasylik, and Kathryn L. Comerford.

Megan E. Gray, Lawrence S. Robbins, Alan Untereiner, Christopher A. Hansen, Arthur B. Spitzer, and Cindy Cohn were on the brief for amici curiae Alliance for Public Technology, et al., in support of appellant.

Donald B. Verrilli, Jr. argued the cause for appellee Recording Industry Association of America, Inc. With him on the brief were Thomas J. Perrelli and Matthew J. Oppenheim. Deanne E. Maynard entered an appearance.

Scott R. McIntosh, Attorney, U.S. Department of Justice, argued the cause for intervenor-appellee United States. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and Douglas N. Letter, Attorney, U.S. Department of Justice.

Paul B. Gaffney, Thomas G. Hentoff, Eric H. Smith, Patricia Polach, Ann Chaitovitz Allan R. Adler, Joseph J. DiMona, Robert S. Giolito, and Chun T. Wright were on the brief for amici curiae Motion Picture Association of America, et al., in support of appellee Recording Industry Association of America. David E. Kendall entered an appearance.

Paul Alan Levy, Alan B. Morrison, and Allison M. Zieve were on the brief for amicus curiae Public Citizen.

Before: GINSBURG, Chief Judge, and ROBERTS, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge:

This case concerns the Recording Industry Association of America's use of the subpoena provision of the Digital Millennium Copyright Act, 17 U.S.C. § 512(h), to identify internet users the RIAA believes are infringing the copyrights of its members. The RIAA served two subpoenas upon Verizon Internet Services in order to discover the names of two Verizon subscribers who appeared to be trading large numbers of .mp3 files of copyrighted music via "peer-to-peer" (P2P) file sharing programs, such as KaZaA. Verizon refused to comply with the subpoenas on various legal grounds.

The district court rejected Verizon's statutory and constitutional challenges to § 512(h) and ordered the internet service provider (ISP) to disclose to the RIAA the names of the two subscribers. On appeal Verizon presents three alternative arguments for reversing the orders of the district court: (1) § 512(h) does not authorize the issuance of a subpoena to an ISP acting solely as a conduit for communications the content of which is determined by others; if the statute does authorize such a subpoena, then the statute is unconstitutional because (2) the district court lacked Article III jurisdiction to issue a subpoena with no underlying "case or controversy" pending before the court; and (3) § 512(h) violates the First Amendment because it lacks sufficient safeguards to protect an internet user's ability to speak and to associate anonymously. Because we agree with Verizon's interpretation of the statute, we reverse the orders of the district court enforcing the subpoenas and do not reach either of Verizon's constitutional arguments.^*

I. Background

Individuals with a personal computer and access to the internet began to offer digital copies of recordings for download by other users, an activity known as file sharing, in the late 1990's using a program called Napster. Although recording companies and music publishers successfully obtained an injunction against Napster's facilitating the sharing of files containing copyrighted recordings, see A&M Records, Inc. v. Napster, Inc., 284 F.3d 1091 (9th Cir.2002); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir.2001), millions of people in the United States and around the world continue to share digital .mp3 files of copyrighted recordings using P2P computer programs such as KaZaA, Morpheus, Grokster, and eDonkey. See John Borland, File Swapping Shifts Up a Gear (May 27, 2003), available at http://news.com.com/2100-1026-1009742.html, (last visited December 2, 2003). Unlike Napster, which relied upon a centralized communication architecture to identify the .mp3 files available for download, the current generation of P2P file sharing programs allow an internet user to search directly the .mp3 file libraries of other users; no web site is involved. See Douglas Lichtman & William Landes, Indirect Liability for Copyright Infringement: An Economic Perspective, 16 HARV. J. LAW & TECH. 395, 403, 408-09 (2003). To date, owners of copyrights have not been able to stop the use of these decentralized programs. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 259 F.Supp.2d 1029 (C.D.Cal.2003) (holding Grokster not contributorily liable for copyright infringement by users of its P2P file sharing program).

The RIAA now has begun to direct its anti-infringement efforts against individual users of P2P file sharing programs. In order to pursue apparent infringers the RIAA needs to be able to identify the individuals who are sharing and trading files using P2P programs. The RIAA can readily obtain the screen name of an individual user, and using the Internet Protocol (IP) address associated with that screen name, can trace the user to his ISP. Only the ISP, however, can link the IP address used to access a P2P program with the name and address of a person — the ISP's customer — who can then be contacted or, if need be, sued by the RIAA.

The RIAA has used the subpoena provisions of § 512(h) of the Digital Millennium Copyright Act (DMCA) to compel ISPs to disclose the names of subscribers whom the RIAA has reason to believe are infringing its members' copyrights. See 17 U.S.C. § 512(h)(1) (copyright owner may "request the clerk of any United States district court to issue a subpoena to [an ISP] for identification of an alleged infringer"). Some ISPs have complied with the RIAA's § 512(h) subpoenas and identified the names of the subscribers sought by the RIAA. The RIAA has sent letters to and filed lawsuits against several hundred such individuals, each of whom allegedly made available for download by other users hundreds or in some cases even thousands of .mp3 files of copyrighted recordings. Verizon refused to comply with and instead has challenged the validity of the two § 512(h) subpoenas it has received.

A copyright owner (or its agent, such as the RIAA) must file three items along with its request that the Clerk of a district court issue a subpoena: (1) a "notification of claimed infringement" identifying the copyrighted work(s) claimed to have been infringed and the infringing material or activity, and providing information reasonably sufficient for the ISP to locate the material, all as further specified in § 512(c)(3)(A); (2) the proposed subpoena directed to the ISP; and (3) a sworn declaration that the purpose of the subpoena is "to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting" rights under the copyright laws of the United States. 17 U.S.C. §§ 512(h)(2)(A)(C). If the copyright owner's request contains all three items, then the Clerk "shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the [ISP]." 17 U.S.C. § 512(h)(4). Upon receipt of the subpoena the ISP is "authorize[d] and order[ed]" to disclose to the copyright owner the identity of the alleged infringer. See 17 U.S.C. §§ 512(h)(3), (5).

On July 24, 2002 the RIAA served Verizon with a subpoena issued pursuant to § 512(h), seeking the identity of a subscriber whom the RIAA believed to be engaged in infringing activity. The subpoena was for "information sufficient to identify the alleged infringer of the sound recordings described in the attached notification." The "notification of claimed infringement" identified the IP address of the subscriber and about 800 sound files he offered for trading; expressed the RIAA's "good faith belief" the file sharing activity of Verizon's subscriber constituted infringement of its members' copyrights; and asked for Verizon's "immediate assistance in stopping this unauthorized activity." "Specifically, we request that you remove or disable access to the infringing sound files via your system."

When Verizon refused to disclose the name of its subscriber, the RIAA filed a motion to compel production pursuant to Federal Rule of Civil Procedure 45(c)(2)(B) and § 512(h)(6) of the Act. In opposition to that motion, Verizon argued § 512(h) does not apply to an ISP acting merely as a conduit for an individual using a P2P file sharing program to exchange files. The district court rejected Verizon's argument based upon "the language and structure of the statute, as confirmed by the purpose and history of the legislation," and ordered Verizon to disclose to the RIAA the name of its subscriber. In re Verizon Internet Servs., Inc., 240 F.Supp.2d 24, 45 (D.D.C. 2003) (Verizon I).

The RIAA then obtained another § 512(h) subpoena directed to Verizon. This time Verizon moved to quash the subpoena, arguing that the district court, acting through the Clerk, lacked jurisdiction under Article III to issue the subpoena and in the alternative that § 512(h) violates the First Amendment. The district court rejected Verizon's constitutional arguments, denied the motion to quash, and again ordered Verizon to disclose the identity of its subscriber. In re Verizon Internet Servs., Inc., 257 F.Supp.2d 244, 247, 275 (D.D.C.2003) (Verizon II).

Verizon appealed both orders to this Court and we consolidated the two cases. As it did before the district court, the RIAA defends both the applicability...